The government can’t hide behind Gmail

San Diego’s better than San Jose on transparency—let’s keep it that way

I love public records laws like a firefighter loves his ax. I love the heft of the federal Freedom of Information Act (or the California Public Records Act) when I slam it into the door of the establishment. And I love it when it gets sharpened.

Since 2009, open-records activists and the city of San Jose have waged a court battle over how far these laws—which are designed to make sure citizens can access government documents—extend to digital communications, particularly when an official decides to use his private email rather than his government-issued account.

In this case, Ted Smith was the plucky citizen who wanted to know what wheeling and dealing members of the San Jose City Council were doing with developers on their personal email accounts and through text messages on their personal phones. The city said no way, (citizens of San) Jose, those are private. Last month, a Santa Clara County judge ruled against the city in a no-duh decision that San Jose's now taking up the appeal ladder.

Consider the implications of the city's argument. If an official knows his personal email accounts are protected from scrutiny, what's to stop all of government from moving to Gmail and conducting its business fully in the dark? This makes me want to get my hatchet out and do what Kai the Heroic Hitchhiker did to that psychopath who thought he was Jesus. (Don't know what I'm talking about? Watch this.)

Government documents belong to the people, and it doesn't matter where the documents are.

Let's say I filed a records request to find out how many red clown noses the city of Bozoville bought this year. And let's say that the day the purchase order was drafted, Winky McGoofer, the chief procurement officer of Bozoville, was working from home. So, McGoofer printed it out on his personal inkjet, transmitted it through his personal fax machine and then left his copy on his kitchen table.

That purchase order doesn't stop belonging to the citizens of Bozoville just because McGoofer didn't want to take off his pajamas that day.

San Jose's legal team makes the argument that its McGoofers have a right to privacy. It wouldn't be right to authorize a government agency to dig into its employees' personal email accounts anytime some open-government zealot like me files a request. I wholeheartedly agree. That would be just as invasive as kicking down McGoofer's door and rifling through his drawers and cabinets looking for purchase orders.

But that doesn't mean McGoofer shouldn't have to produce it himself. And if he fails to, well, then he's broken the law.

Unfortunately, in California, there's not much of a penalty for evading public-records law. You can take a government agency to court, as Smith did, but you'll be lucky just to get your legal bills covered if you win. That isn't the case in New Mexico, where the Santa Fe Reporter (from which CityBeat poached me in 2009) is currently winning its legal battle against the state's governor.

In June 2012, the alt-weekly put in a request for emails sent by the governor's staff using personal and campaign email addresses. Through a leak, SFR already had obtained many of the emails, so reporters knew they existed—yet the governor's office refused to hand them over. Unlike in California, New Mexico's laws allow the public to appeal a decision to the attorney general; SFR did, and the attorney general agreed with them. Again, unlike California, New Mexico has a $100-a-day penalty for improperly withholding records. According to the clock ticking away on SFR's homepage, the governor could owe the paper more than $25,000.

Anecdotally, San Diego hasn't been all that bad on these issues. Last November, I filed requests for private messages sent through then-Councilmember Carl DeMaio's staff's Twitter accounts. The records I received weren't particularly interesting, but, still, the city turned them over.

(On a related note, the city's Ethics Commission clarified the rules at its April 11 meeting, stating that city staff can't use city-linked social-media accounts for campaign purposes.)

However, there may be cause for concern with the new mayoral administration. During a January meeting with medical-marijuana activists, Mayor Bob Filner told the audience to send recommendations to his campaign email account. Before he'd even finished speaking, I shot off a records request for any correspondence he'd received at those accounts. No emails were ever produced. That might've been my fault: In my axe-wielding berserkedness, I mistyped the domain name for his campaign addresses, giving Filner's office the opportunity to invoke a technicality.

I haven't followed up since I left my full-time gig at CityBeat in February, but I encourage you to give it a shot. You can demand emails sent to bobfilnerformayor.com accounts with just a quick note to the City Clerk at cityclerk@sandiego.gov.